Saturday, November 05, 2011

After months of stormy public debate, punctuated by occasional bursts of violence, about how Egypt’s new constitution is to be written, the Supreme Council of the Armed Forces released a proposed set of supra-constitutional principles to be embodied in the new document and a set of standards for selecting the constitutive assembly that will write it. With the first round of elections for the lower house of parliament set for the end of this month, almost all the parties planning to participate have soundly rejected it. As Egypt moves closer to the moment when the institutional and ideological shape of the post-Mubarak landscape is determined, the conflict over this document reveals how Egypt has changed in the past nine months.

The document evokes a profoundly corporatist vision of Egypt and places its democratic future to a remarkable degree in such a framework. In at least two cases—the military and the judiciary—SCAF proposes to allow the affected branch determine the content of legislation affecting it. In addition whether by the backdoor or by simple oversight the military has introduced a new penalty—stripping Egyptians of their citizenship—that no previous Egyptian constitution has allowed and that several appear to have prohibited.

A popular slogan in the days after Husni Mubarak stepped down as president promoted the idea of the unity of the people and the army—like the fingers in a fist, they were a single hand. In response to those who voiced misgivings about the army’s seizure of power, it was widely asserted that Egypt would become a democracy albeit with exceptions. The most widely proposed exception was that some political or constitutional mechanism would have to be found that recognized the prominent interests of the armed forces in the country’s economic and political life. Whatever else people say about the twenty-four members of SCAF, they can at least respond that this proposal is consistent with those earlier defenses of their role.

In March, SCAF promoted a set of amendments to the 1971 constitution drafted on behalf of the late president Anwar Sadat and amended several times by Mubarak. Although SCAF later abolished the 1971 constitution by fiat and replaced it with their own constitutional declaration, they retained the amendments that had received 77% of the vote in a referendum. It was widely understood that these amendments committed SCAF to allow a freely elected parliament complete liberty to choose a constituent assembly of 100 members that would then write a new constitution.

As it became clear over the spring and summer that such a parliament would probably have a majority of members from the Muslim Brother’s political wing—the Justice and Freedom party—and more radically Islamist Salafi parties liberal and leftists began to urge the adoption of a set of supra-constitutional principles. Their idea was that this would provide a common commitment to democratic values that presumably all political activists could agree on: freedom of speech, association, and electoral mechanisms. The Justice and Freedom party as well as the various Salafi parties objected that any such agreement pre-empted the sovereign powers of an elected parliament which they increasingly realized they were likely to dominate. The force of argument between the two sides may have been equal but it is increasingly clear that the practical wisdom of not reaching an agreement on political principles was not identical.

One common set of anxieties among foreign observers has been especially evident in the months since March: the fear that Egypt would disintegrate into anarchy and that only the Muslim Brothers and the Army, presumably acting as one hand, could stem the tide. That the Muslim Brothers and the Armed Forces have engaged in tactical cooperation from time to time since March, both in the referendum on the constitutional amendments and at several crucial turning points since, is evident. This cooperation has, however, masked some very important differences that have now become apparent. Much as outsiders hope that the Muslim Brothers are really, as the name of their newly-formed political wing suggests, similar to Turkey’s Justice and Development party the Armed Forces are unlikely to be their allies. Turkish Prime Minister Recep Tayyip Erdogan has fought a lengthy and largely successful battle to trim his army’s power; the Egyptian army is unlikely to wish to see a local Islamist party follow the same path.

It is thus not surprising that the Muslim Brothers and other political forces have strongly objected to articles 9 and 10 of the army’s proposal. Article 9 would give the SCAF an institutional presence in the new government with the sole right to determine the military budget and any other legislation that affects the Armed Forces. In addition, although the president of the republic would be the “supreme commander” of the armed forces, the minister of defense would be the “general leader.” One possible, although not necessary, implication of this formula is that the Minister of Defense would be a general chosen by SCAF itself. In addition a declaration of war would require the agreement of SCAF as well as parliament. Article 10 would create a National Defense Council headed by the president of the republic which would concern itself with broadly defined “issues relating to assuring the safety and security of the country.” This is a much more specific renewal of a similar council called for by the 1971 constitution. That article fell into desuetude but there is clearly some concern that this time around the Armed Forces might be more eager to put it into practice.

These proposals for institutionalizing the power of SCAF in a new constitutional order are clearly not what the initial idea for agreement on supra-constitutional principles meant. They do, however, speak to the Armed Forces concept of what a democratic order in the Egypt will mean and what limits will be placed on its power of decision. It is also quite clearly a proposal designed to win a positive response from those, foreign and domestic, whose anxieties about a democratic order view it as equivalent to the unrestricted power of the Muslim Brothers, or mob rule, or a decision to initiate war with Israel.

The SCAF document also proposes a set of rules for the selection of a constitutional convention. It takes authority largely away from the parliament that is about to be elected and replaces it with a vision of corporatist decision-making. Parliament will choose 20 members of the constituent assembly from the various currents represented inside its walls. The other 80 members will chosen from various occupational associations—already largely controlled by the government and thus indirectly influenced by SCAF—through their own internal processes. The new assembly is to be heavily weighted to the middle classes and specifically the legal profession. The judicial branch of government (courts and prosecutors) will choose 15 members; the universities will also choose 15 members of whom 5 must be constitutional law professors; and a further 15 will be chosen by the professional associations (lawyers, doctors, pharmacists, engineers and so on). The trade union federation and peasants union will also choose 5 members each. The “Egyptian church”—presumably the Orthodox Coptic church—and the Azhar will choose one representative each as will the sports federation, the armed forces, the police, and the Federation of Industry. The text helpfully provides that in many cases these representatives will be chosen by the appropriate legal mechanism of the relevant institution.

This understanding of the constitutional convention as a corporate rather than an elected representative body is reminiscent of the political climate in the Nasserist Egypt in which most of the members of SCAF presumably spent their adolescence and early adulthood. This may be the golden age of order and progress to which the military leadership, and perhaps many other Egyptians, wish to return. It is difficult to read the proposed principles without being reminded of Nasser’s Philosophy of the Revolution. As in Nasser’s vision but now to be enshrined in the constitution is Egypt’s commitment not only to Arab unity but to the country’s Islamic and African vocations.

If SCAF will oversee legislation regarding the military and security, the judiciary will also oversee legislation that affects itself. Article 5 proposes that to guarantee the independence of the judiciary the plenary associations of the judiciary will be given the freedom and responsibility to determine what legislation will affect their role.

Overlooked, at any rate outside Egypt, in much of the discussion about this proposal are some ways in which it takes account of recent changes in the domestic and international political environments and especially the degree to which it creates new constitutional imperatives that may have significant long-term effects on the country. Older constitutional guarantees are either implicitly or explicitly overturned while new governments may find themselves constitutionally barred from pursuing desirable policies.

It comes as no surprise that the document reiterates that Islamic sharia is the source of law in Egypt. New (article 2) is the proposal that it should now be a principle that the personal status of non-Muslims would be governed by their relevant religious law (that is, the non-Islamic sharia of their religious community). This accords with contemporary Egyptian legislative practice but raises it to the level of constitutional principle. For those who hope to create a unified civil law of marriage, divorce, and inheritance it will post a nearly insuperable constitutional barrier as well as those of ordinary law and custom. Of course religious officials of the Christian and Muslim communities may find it welcome.

Egypt will, in the coming years, need to re-negotiate the treaties governing the division of Nile water. The existing treaties, initiated by the British during the imperial era and renewed during the Nasser period, strongly favor Egypt at the expense of the African countries of the upper Nile Basin. These states have sought to renegotiate or unilaterally terminate the unequal treaties but agreed to forego such action at the time of the revolution. The new principles would make the maintenance of Egypt’s historic rights to Nile water a constitutional issue rather than one of government policy presumably open to renegotiation.

SCAF has also created some crucial tripwires. The document sets several deadlines for the constitutional convention to complete its work. In the event the convention writes a document SCAF considers unacceptable the Supreme Constitutional Court will become the final arbiter. Whether the justices of that court will wish to, or would be well advised to, step into a conflict between SCAF, the constitutional convention, and the legislature is a question nobody has yet asked them. In the event that the convention as chosen cannot complete its work in the period assigned, it can be dissolved by SCAF which will then choose a new convention.

Nearly unnoticed in the discussion but possibly the most problematic of all is article 13. Citizenship has become a significant issue in recent years especially as it concerns the children of Egyptian mothers and foreign fathers. What has not been at issue, however, is the citizenship of other Egyptians. The 1971 constitution explicitly provided that the regulation of citizenship was a matter of law but also provided that Egyptians retained the right both to leave and return to the national territory. The fear of political persecution or judicial prosecution has certainly induced Egyptians to leave over the past 60 years (and more) but they did not thereby forfeit their citizenship. It is therefore surprising that paragraph 13 of the proposals reads that although citizenship is a basic right of Egyptians and citizenship may be lost and citizens exiled or forbidden to re-enter the country as long as this is pursuant to a valid court decision. In other words, exile is now a possible penalty that the state, through the judicial process, may impose on Egyptian citizens. This has not been a possibility before in Egyptian law or life. Important as the courts may be in determining the rights of citizens, until now the constitution itself guaranteed these rights to Egyptians. Now, as a matter of principle, it is proposed that that will no longer be the case.

The attempt by SCAF to preserve its place in the institutional structure of the state may or may not succeed. That it was an idea that many observers might have considered plausible nine months ago but no longer has much resonance with the political forces in contention reveals how much the country has changed. It may no longer be possible to deny Egyptians the right to vote freely and fairly. What remains is the kind of option that governments such as that of Kaiser Wilhelm in pre-war Germany: to allow free elections and to remove as much as possible from the purview of the legislatures they empower.